Going Beyond the Limits of Executive Powers: Arguing against the Treasury Secretary’s absolute autonomy on the US$700 billion rescue package Essay
Going Beyond the Limits of Executive Powers: Arguing against the Treasury Secretary’s absolute autonomy on the US$700 billion rescue package
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“We have not in our lifetime dealt with a financial crisis of this severity and unpredictability.”
– Testimony of Secretary Henry M - Going Beyond the Limits of Executive Powers: Arguing against the Treasury Secretary’s absolute autonomy on the US0 billion rescue package Essay introduction. Paulson, Jr., during a Senate Hearing on the EESA
The past months have been characterized by crises cloaked in various faces—economic, social, environmental and political. Even the centuries-strong institutions that our founding fathers have built and were protected and nurtured by the succeeding generations of Americans were continuously being threatened in various fronts. The U.S. Government is among the most dynamic and most enduring democracies this world has ever seen. It has been founded on absolute dependence on public trust, which in turn, is reciprocated by transparency, accountability and responsibility of those given such trust to govern. The result—the United States is the richest and most powerful country in the world. However, coming to the last quarter of the present year, these catastrophes seemed to have aggravated more and more, especially with the start of the worldwide recession, gravely hitting the global financial markets and affecting almost everything and everyone connected. Suddenly, America wasn’t that invulnerable a country after all…
The current financial crisis has prompted the Bush Administration to undertake counter measures to forestall further damage to the economy. However, one of these measures—a “rescue package” whose total value Joe the Plummer will never earn even in several lifetimes—has awaken the national consciousness as it directly concerns the fate of their hard-earned money that they entrusted to be used for the greater good. In an unprecedented turn of events, we, the taxpayers, must be very vigilant on how the government—particularly Executive branch—handles the public coffers.
Merely looking at how the federal government has railroaded the passage of the “rescue package” that is worth an estimated 800 billion dollars can put shivers to one’s spine, creating nightmares even in broad daylight. One can’t help but ask “Should the Secretary of the Treasury be allowed to arbitrarily decide the plan for the use of this money for this ‘bailout’?” Likewise, why should the Executive branch—through the Treasury Secretary—be permitted to unilaterally have full autonomy on the rescue package, without the proper participation of the other branch of government, particularly the U.S. Congress?
This paper seeks to make an analysis of the circumstances surrounding the Bush rescue program to address the current economic turmoil, particularly on the aspect of full autonomy in the disbursement of the almost US1 trillion worth of taxpayers’ money, and an argument against the move to provide such enormous authority to the Executive Branch (as represented by the Secretary of Treasury) that entails no accountability or responsibility on how they manage public funds in the name of economic salvation. I am against this and any other move to provide complete autonomy to government officials when in the first place public service should always uphold public trust, transparency and accountability.
To develop and support my argument, I will first discuss the salient points highlighted in two landmark opuses—The Terror Presidency (Goldsmith, 2007) and Presidential Power (Jost, 2006)—which both persuasively detail the numerous overindulgences and blunders of the Bush Presidency. This step is done to support the next section where I will offer my arguments against the recently ratified bailout plan—the Emergency Economic Stabilization Act of 2008—particularly the stipulation granting the Treasury Secretary full autonomy to disperse the funds without the proper Congressional oversight and pertinent accountability to the American People. I will also make a short discussion on the Secretary of the Treasury to discuss the scope and limitations of this Executive Branch office. Finally, before presenting my conclusions, I will make a concise discussion on government accountability and public trust to support my arguments.
Pushing the Limits of the Presidency
The US Executive Branch is one of the three parts of the American Federal form of government, the other two being the Congress and the Supreme Court. The U.S. Constitution framed the sharing of powers between these three, all in equal footing. This is to ensure that no individual or groups will have the monopoly of power and at the same time put the necessary machinery for checks and balances of authority, responsibility and accountability. However, the rich political history of the U.S. has been tainted, time and again, with various forms of covert and manifest machinations to put the U.S. Presidency on higher ground, giving more authority over the two branches of government, thus, seeking to break the centuries-old order. A handful of books, articles, documentaries and other materials have been published regarding this often Presidency-initiated power struggle.
For one, The Terror Presidency (Goldsmith, 2007) details the legal issues the Bush Presidency encountered and continued to deal with in the fight against terrorism, including the warrantless arrests and wiretapping laws. While he is greatly considerate of the Bush administration’s concerns regarding anti-terrorism legislations, Goldsmith—formerly the head of the Office of Legal Counsel (OLC) for nine months until his resignation in July 2004—vividly asserts that the focus of the present administration is not the statesman-like approach of persuasion but on the brute force of prerogative. The author avers that this approach has proven to be “counterproductive” and provides more harm than good, both it the administration’s war on terrorism and in the expansion of executive power. Other assertions in the book include the current Chief of Staff to Vice President Dick Cheney, David Addington’s statement that, at one point, “We’re one bomb away from getting rid of that obnoxious court.” Addington was talking about the secret FISA court that makes the rules on warrants for secret wiretapping by the U.S. government (Rosen, 2007).
Goldsmith also describes instances in which President Bush and the OLC took independence to a place in which the founding fathers did not intend to take it. The President’s intent and goal was and is to keep the U.S. safe from terror. However, as the years passed by and the deaths of many soldiers took place, the President did not see that the country was fighting a “losing cause”—waging an unnecessary war outside U.S. territory just to fortify its global supremacy. The Office of the Attorney General did not see or did not want to see that this involvement in war was placing American safety and confidence in the government at risk.
Goldman also made several comparative assessments between President George W. Bush and other previous U.S. Presidents. One trait became very clear—the previous presidents such as Lincoln and Roosevelt were looking at how to keep the country together during a time when the country was at war, and what needed to be done to make the country thrive for the generations that will follow. Bush, on the other hand, was so involved in the current war against terrorism that he could not see an end to the legalities of his decisions, nor could he see that the nation was slowly being divided over ideologies and priorities of the Bush Administration. These and other policy decisions that transpired during the Bush Presidency had happened because one government branch (the Executive) exercised unilateral authority, putting in the sidelines the other two supposedly co-equal branches (the Congress and the Supreme Court). President Bush is blinded by his decision to enter into this war and that nothing—the legislative, judicial and the general public—can ever stop him. This vividly shows the Chief Executive’s propensity to function with sheer autonomy, thus negating the fundamental tenets of transparency, accountability and public trust.
In the article Presidential Power, Bush is criticized for taking too much power within the working of the government. Just the significance of getting the Patriot Act passed to commence in wiretapping phones of different persons in the name of terrorism was looked upon by Americans and Congress as brutality against the citizens of America—all in the name of protection. What bothered most persons about the Act was that is appeared to abuse the rights of the ordinary citizen. This means that a citizen could have his or her phone tapped just for the sake of security when nothing has been proven to the contrary.
After passing the bill, in retrospect Congress regretted it because it gave the President too much power just for the sake of security. With this bill, no precedent wrongdoings had to be proven, just a doubt or two to give the government the right to invade the privacy of all who were deemed a threat, even if they were actually innocent. The irony here is that we gave these leaders the opportunity to lead us for a better and organized social order, but in turn these supposed caretakers stripped us of our privacy and become very scared of things to come! Again, this adds to the argument that indeed, too much power is given.
Turning back to the issue of the bailout package, we can again echo the stance of this paper against absolute autonomy: “Why should we give autonomy—without accountability or responsbility—to the Secretary of the Treasury to disburse an estimated US1 trillion?” My position is also an absolute “No!” Looking at the Executive Branch and its apparent abuses of total appearance of sovereignty or unilateralism, no branch of government ever should be given complete autonomy without congressional or judicial oversight for consensus, responsibility/accountability for what significant/substantial decision affecting the American taxpayer to be made. During the current presidency, so much power had been given to the Executive Branch of government that no one really considered consulting or talking with the other branches to get proper balance in government. The Legislative Branch was only consulted to give the President more power than what he initially had.
If the Secretary of the Treasury has unilateral authority, how will there be an accountability and approval of what institutions or companies he decides to provide financial subsistence for in this nearly 1 trillion dollar emergency economic recovery act? Why would such a great amount of public funds be fully entrusted to the Treasury Secretary in such a harried, hurried manner without any oversight from the representatives of the people (Congress) and the highest legal institution (the Supreme Court)? I firmly suspect that those who most need the funds will likely remain in distress. I argue that balance, accountability and transparency be upheld in every plan and action of government. To reinforce my case, I will now discuss the bailout plan, how it was conceived, designed, and ratified, and how it will likely be carried out.
Beginnings of the Rescue Package
With the backdrop of over one year’s market stress, aggravated by the seizing up of the financial system that eventually ballooned into a system-wide economic crisis, the heads of the economic team of US President George W. Bush appeared before the US Congress to present the urgent need for a new legislation to avert further financial predicament to the richest economy in the world. On September 18, 2008, US Secretary of Treasury Henry M. Paulson, together with Federal Reserve Chairman Ben S. Bernanke went before the Congressional bipartisan leadership [House Speaker Nancy Pelosi, D-Calif. and Senate Majority Leader Harry Reid, D-Nev.] to give details on the pressing need for a bailout package.
Paulson painted a very bleak picture of the economy—“Our markets were frozen, banks had pulled back very substantially from interbank lending. Confidence in our financial system and a number of our financial institutions had been seriously compromised”—arguing that unless an immediate legal intervention is made, the US economy will collapse (). After being initially rejected and undergoing several revisions, H.R. 1424 or the Emergency Economic Stabilization Act of 2008 (EESA) was finally signed into law by President Bush—the very same day it was approved by Congress. Having such gargantuan magnitude, the passage of EESA has elicited (and is still eliciting) much concern and debate. The most significant among these issues is the concern about the excessive power granted to the US Secretary of Treasury in the administration and implementation of the Troubled Asset Relief Program [TARP], which is the core program stipulated in EESA.
I argue that this legislation does not adequately address basic quality assurance measures necessary for effective Congressional oversight and protection of the American taxpayer. Likewise, I contend that the Sec. Paulson, as well as other appointed and elected public officials in the US and elsewhere, should never be given such self-governing authority to administer and implement any public program, to ensure that full transparency is achieved in the extraordinary use of the taxpayers’ hard-earned money.
The EESA is a recently-passed legislation that authorizes the US. Federal Government to acquire and ensure several types of troubled asset to provide stability and prevent disorder in the economy, protect the taxpayers and boost the financial system. Among others, the EESA was also meant to make changes to the Internal Revenue Code of 1986 by providing incentives for energy conservation and production, to lengthen provisions that will expire, and to offer individual income tax relief.
This law allows the US government to utilize up to US$700 in public funds—the first half autonomously, and the rest with the approval of the US Congress—to purchase troubled assets from struggling financial institutions. It would also create a program through which the US government would provide insurance to companies for their assets instead of purchasing them. In addition, the EESA sets up “appropriate standards” for the compensation of executives at business organizations that sell assets to the government, establishes a congressional oversight panel and obliges the government take equity stakes in bailed out companies. Furthermore, this decree features a number of unrelated tax relief stipulations, including a mental health parity stipulation obliging mental health coverage insures to do so in correspondence with their surgical and medical coverage, a one-year patch of the alternative minimum tax, a renewable energy tax credit, and a tax relief for disaster victims. (Gross, 2008)
On September 29, 2008, after one week of negotiations between the Bush Administration and the leaders of Congress, the House rejected the proposal. A number of reasons were given by members of the House who voted not in favor of the proposal. Some members argued against the poor stipulations on oversight, the instance of previous government interference in financial markets and the high cost to American taxpayers. Some Republican Congressmen commented of Speaker Pelosi’s speech on the House floor prior to the vote has a partisan intonation. (Sorkin & Walsh, 2008)
A few days later (October 1), the Senate initiated a substitute amendment to H.R. 1424—a previous legislation—inserting language authorizing an amended rescue package. The Senate legislation including a number of ‘earmarks’ that seemed designed to influence the senators’ votes. It also included a landmark mental-health parity bill and several tax rebates for renewable energy development, and other tax-related add-ons. The Senate approved the bill, voting 74-25 (Ives et al., 2008a). The House, on October 3, again mulled over the proposed bailout plan. The House endorsed the version of the bill made by the Senate, voting 263 to 171. What’s most incredulous is that the approved version was immediately signed into law the very same day by the US President. A considerable of previous House dissenters changed their votes, which some members attribute to the tax-related additions as well as to the introduction of the mental-health bill (Ives et al., 2008b).
The Secretary of the Treasury
From July 2006 up to the present, US Secretary of the Treasury Henry Paulson is the head of the United States Department of the Treasury, the Executive Branch office for finance and monetary concerns, including issues of natural defense and security (starting 2003). This is the counterpart of Finance Secretary or Minister in majority of other countries. The establishment of the Department of Homeland Security in 2003 saw the transfer of several law enforcement agencies under the Treasury Department to other departments, including the Secret Service, Customs Service and the ATF. A member of the Presidential Cabinet, the Treasury Secretary also has a seat in the U.S. National Security Council starting with the Clinton Administration. As per the United States line of succession to the Presidency, the Treasury Secretary is the fifth.
The Treasury Secretary is the primary economic advisor to the US President and assumes an important role in policy-making by providing a government financial and economic policy perspective to issues the government must deal with. It is the responsibility of the Secretary to formulate and recommend local and global economic, tax and financial policy. The Secretary also participates in formulating a wide range of fiscal policies that have broad significance for the US economy and in the management of public financial obligations. It also the responsibility of the Secretary of the Treasury to watch over the Department’s law enforcement activities as well as the manufacture of currency and coins. The Secretary also serves as the chief financial agent for the American government.
As the Chief Financial Officer of the US government, the Treasury Secretary functions as Chairman Pro Tempore of the President’s Economic Policy Council and Chairman of the Boards and Managing Trustee of the Social Security and Medicare Trust Funds. The Secretary also serves as the U.S. Governor of the European Bank for Reconstruction and Development, the Asian Development Bank, the International Bank for Reconstruction and Development, the Inter-American Development Bank, and the International Monetary Fund; and oversees the United States Emergency Economic Stabilization fund. Finally, before a Federal Reserve note can be a legal tender, the Secretary must sign it together with the Treasurer.
As mentioned above, it was on October 3, 2008 when the U.S. Department of Treasury was given the authority to establish and manage a Troubled Assets Relief Program (TARP) managed by a newly established Office of Financial Stability. The EESA which created the fund also gave the authority to the Treasury Department to allocate up to $250 billion for urgent use. After this, a certification from the President on the need for an additional US$100 billion is required. The remaining fund ($350 billion) is subject to Congressional approval (US Senate Committee on Banking, Housing and Urban Affairs, 2008). As of November 12, 2008, a total sum of $290 billion of the first $350 billion allotment funding TARP has been disbursed, $250 billion used as infusions for bank, and $40 billion for an equity infusion into American International Group. As lawmakers proposed loans to the struggling automobile industry, Secretary Paulson stated that the second allotment will be used to revive the securitization market for consumer credit (Landler & Dash, 2008).
The program is operated by the Treasury Department’s newly-created Office of Financial Stability, which will have seven units, namely: (1) Mortgage-backed securities purchase program; (2) Whole loan purchase program; (3) Insurance program; (4) Equity purchase program; (5) Homeownership preservation; (6) Executive compensation; and (7) Compliance. Firms that sell their bad assets to the government must provide warrants so that taxpayers will benefit from future growth of these business organizations. Using the first $250 billion dollars allocation to the TARP, the US Treasury will purchase equity stakes in nine major U.S. Banks, and potentially thousands of smaller banks (Solomon et al., 2008). These recipient banks of the equity investments from the Department of Treasury include the Bank of New York Mellon, Citigroup, Inc., J.P. Morgan Chase & Co., Bank of America Corp. (including Merrill Lynch), Goldman Sachs Group Inc., Wells Fargo & Co., State Street Corp., and Morgan Stanley. To serve as the custodian bank that will manage the TARP fund will be the Bank of New York Mellon (Dash, 2008).
On Government performance and accountability
Now that we have presented the salient points of the EESA and how the Secretary of the Treasury will disburse the $700 billion worth of public funds allocation, we now discuss several studies on the area of public service, trust and accountability to give further guidance to my arguments.
On Trust on Government
The dynamics on political trust has hit both highs and lows since the latter part of the previous century. In 1964, the National Election Studies reports that 76 percent of Americans trusted the national government almost at all times or always. Come 1980 that number had fallen to around a quarter of US citizens. During the early years of the Reagan Presidency, trust in federal government rose, but went down during the late 1980s and early 1990s. By 2002, it began a steady rise to 56 percent. Over the years, the Gallup Poll has also incorporated several queries regarding trust in the national government. (Citrin & Luks, 2001)
Many argue that the downturns in political trust can be attributed to several major national events, including the Watergate Scandal, Iran-Contra issue, and the infamous Vietnam War. Other people believe that an increasingly negative media environment as well as economic conditions have further aggravated the declining trust in the national government (Citrin & Luks, 2001).
Most studies on political trust has focused on trust in national government (Miller 1974; Richardson, Houston & Hadjiharalambous, 2001), but some evidence suggests that trust in government is somewhat higher at the state level (Hetherington & Nugent, 2001) and highest at the local level (Bowler & Donovan 2002; Rahn & Rudolph, 2002). These differences can be attributed to the fact that citizens have more contact with their local government officials and generally identify more with lower governments (Box & Musso, 2004).
Accountability within public organizations pertains to accountability over the management and execution of programs and functions—which is a function of the executive branch. Oversight is essentially considered to be a function of the legislature, but organizations within the judicial and executive branches also have oversight responsibilities (Aucoin et al., 2004). These include the Office of Management and Budget (OMB), agency inspectors general (IGs) at the federal level, and for the judicial branch, the Administrative Office of the U.S. Courts. Federal IGs are somewhat of a hybrid—by law they are required to be independent, yet organizationally reside within the executive branch and report to the agency head, but are also directly accountable to Congress.
Under the U.S. Constitution, the creation of laws is the function of the Congress. Over the years and through the enactment of various laws, Congress has directed that three central agencies establish policies and regulations for the enforcement/monitoring of statutes—OMB, the Department of the Treasury (Treasury) and the Government Accountability Office (GAO). These agencies are basically responsible in the development, implementation and supervision of financial management laws, regulations and other guidance (Green & Zavada, 2008).
Accountability has both political and managerial dimensions and is decisively hierarchical in nature. It is within the internal sphere that political and bureaucratic power can be firmly implemented and can be reorganized as per requirements of the situation. There are various forms of accountabilities, including bureaucratic accountability, political accountability to politicians (of different types, such as parliament, secretaries), public accountability (such as clients and consumers), and administrative accountability to non-political entities (such as coming from a new administrative bill) (Behn, 2001; Romzek, 2000). There are also professional accountability to the norms and practice of a profession as well as legal accountabilities to the courts.
Some of these types of accountability are founded on diverse accountability relationships, making it imperative in practice to oversee a number of accountabilities. On the one hand, there has been the more widespread initiative towards increased public scrutiny and greater accountability. On the other hand, governments—together with the private sector—have transferred functions to the business sector and evaded public accountability requirements (Mulgan, 2003). At the same time, accountability has been the focus of interceding political demands to a bigger extent. Through enforcement of hierarchical relationships and dissemination of political influence, this dynamic has increased political control of the bureaucracy (Halligan, 2003a). Concurrently, the long-running abrasion of the power of Congress has remained under increasing dominance of the Executive branch, while extra-parliamentary agencies of scrutiny (such as the auditor-general) have also been susceptible to executive constraints, both legislative and financial.
I am—probably together with the whole world—in such a great loss on the question why did the Bush Administration in more than a handful of instances avow presidential power in manners that looked self-defeating politically and often unnecessary. Goldsmith (2007) offered his answer—“I believe, is that the administration’s conception of presidential power had a kind of theological significance that often trumped political consequences.” To some extent, this can be true since this type of political behavior can be akin to some fanatical origin or motivation. Maybe Bush and colleagues do firmly see that their intentions—notwithstanding what people might say—are for the greater good of more Americans. That the unilateral decisions they make would produce better results than being subjected to judicial and legislative scrutiny. But definitely, to those conniving souls in the White House, they are doing the right thing.
Within the set-up, for example of a family, the unilateral stance may create better lives for the household members, granting that the decisions made are ultimately for the good of the family. But we are talking of a country, a great Republic here—where hundreds of millions of lives depend significantly on the wave of the baton conducting in the Executive branch. And one wrong note or melody can make the orchestra play out-of-tune.
Public office should be more of persuasion and consent. Roosevelt has brilliantly displayed this. He didn’t depend much on ideology, but more on pragmatism and sensitivity to political outcomes. Most presidents prior to Bush indeed upheld the basic essence of democracy. There are times when a well-crafted policy—despite considerable research and public consultation—can still fail. Sometimes being pragmatic will appear opportunistic and elicit distrust. But is there really a one-size-fits-all solution to every national problem that we face? The democratic form of government is the not the best but it’s still the most humane approach that we can think of to date. To a Chief Executive, democracy means truly listening to your constituents and then making decisions based on what your people have told you.
True leadership should never be about making grand speeches that the administration wishes to leave the presidency in a stronger state than before. It is not about managing the country alone, leaving behind Congress and the judiciary. The presidency should never be unilateral. It should never be about making insolent programs that endanger the very fabric of democracy that our founding fathers have fought very hard for. A true leader of a nation should be more of ensuring that liberty of each and every citizen is protected and every voice heard and considered. The U.S. President should be the epitome of democracy, of transparency, of accountability, of responsibility, of humanity.
Finally, there is also the blatantly real and pressing reason, but remain not discussed, for the urgency of the bailout program—the Chief Executive and cohorts have only less than two months in office before they exit the White House doors! Anyone in the “brink of death” will likely do what it takes to make the most of the remaining time. Please tell me otherwise.
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